WisconsINjustice: Judging the judges

The WisconsINjustice series kicks off today. It's a Gannett Wisconsin Media I-Team investigation into the sentencing practices and accountability of judges in our state.(Photo: Getty Images/moodboard RF)

The last act in a circuit court conviction is probably the most important. It has the ability to change lives, render justice, act as a deterrent, take into account extenuating circumstances, and consider recommendations from the prosecution, the defense, the victims and the defendants.

It is the sentencing.

“If the hundreds of American judges who sit on criminal cases were polled as to what was the most trying facet of their jobs, the vast majority would almost certainly answer ‘sentencing,’” Judge Irving R. Kaufman wrote in a 1960 essay in the Atlantic Monthly. “In no other judicial function is the judge more alone; no other act of his carries greater potentialities for good or evil than the determination of how society will treat its transgressors. It’s also probably the toughest decision.”

Those toughest decisions are the subject of two Gannett Wisconsin Media I-Team stories today. They kick off a three-week series, WisconsINjustice, which looks at the judiciary, from sentencing practices to accountability.

I-Team reporter Eric Litke spent months interviewing dozens of judges and experts and analyzing data. What he found may be surprising to those with limited exposure to the judicial system and how it’s managed.

In this week’s stories, Litke examines how sentences for the same crime can vary so widely that judges get reputations for being too harsh or too lenient. As a result, defendants routinely seek judicial substitutions to get away from the former, hoping to land in the latter’s courtroom.

For example, homicide by intoxicated use of a motor vehicle brought a median sentence of five years in prison over the last decade, but 76 offenders got a year or less behind bars, while 74 others got 10 years or more.

The disparity begs one simple question: Why?

The answer is not so simple.

The public is often left in the dark about sentencing decisions. The hubris some judges have cloaked themselves in requires that they owe no one an explanation beyond the statutorily required comments at sentencing. They hold accountable those who come before them yet some believe they shouldn’t be held accountable for their decisions.

But doesn’t the public deserve an answer when sentences for the same conviction can fluctuate so wildly on OWI homicides and the other felonies analyzed by the I-Team? Who judges the judges?

Judges fulfill an important role in our society, but they walk a fine line. In most cases, sentences need to be strong enough to act as a deterrent and to punish, but they cannot be so unforgiving that someone convicted of a crime can’t pay his or her debt to society and be rehabilitated.

(Obviously, there are heinous crimes in which the perpetrator must be locked up to protect society, but those cases are rare. The majority of cases deal with lesser charges.)

It’s certainly an imperfect system because we ask judges to remain impartial and not influenced by political and societal pressures, yet we require them to run for elected office. They are then elected by voters who have little information to consider when casting their ballots.

Judges have a tremendous responsibility and a tremendous amount of power, but with that responsibility and power should come scrutiny.

That’s why we believe this series is so important. The average state resident isn’t going to take months to interview judges and experts, analyze sentences and compile a database that looks at every case since 2005 in which the judge handed down a sentence that was below the mandatory minimum or a put together searchable database that presents a report card for each judge in Wisconsin.

The dozens of stories, databases, videos and interactive graphics in this series will give residents the tools to begin assessing a judge’s performance – an assessment based on data rather than a “feeling.”

We commend this series to your attention.

WisconsINjustice series

The three-week series by Gannett Wisconsin Media I-Team reporter Eric Litke looks at the judiciary, including judicial sentencing disparities, the lack of accountability and unveiling a first-of-its kind statewide survey of judicial job performance.

» TODAY: Litke identifies the harshest and most lenient judges in the state based on an analysis of 12 of the most common felonies over the last decade. We also look at the many factors that influence sentencing.

We’ll have several videos, an interactive database showing the relative harshness of judges statewide over the last decade and a searchable database showing judicial substitutions for all judges.

» MONDAY: Litke looks at how judicial philosophies vary and impact sentencing with a second story, looking more closely at difference between judges. We also look at how widely sentences vary between counties to examine the imbalance and injustice of the justice system.

» TUESDAY: We look at the how the minimum penalties for sex crimes are routinely ignored by local judges and inconsistently instituted in state statute.

We’ll also have a database of every case since 2005 where the judge sentenced below the minimum.

» ​SUNDAY, DEC. 6: We’ll examine how little information voters have to tell if judges are doing their jobs well, how often they’re overturned on appeal, how rarely judges are opposed in their re-election campaigns, how rarely they are disciplined and how this affects the system.

A searchable database will present a report card for each judge that will summarize the data presented thus far, showing sentencing harshness, appeals, frequency of judicial substitutions and more.

» SUNDAY, DEC. 13: Earlier this year we sent a survey to every trial attorney in the state asking them to rate the judges they appear before on a variety of criteria. We’ll unveil the results of that survey, which was based on one developed by the American Bar Association.

A searchable database will allow readers to see how the judges in there rated compared to others locally and statewide.

» MONDAY, DEC. 14: We discuss solutions with lawmakers, judges and others, looking at how we can improve the accountability and fairness of the justice system in light of our findings.

» MORE: Additional pieces in our ongoing series will delve into the use of deferred conviction agreements and the frequency with which certain judges and counties seal cases from public view.

TELL US WHAT YOU THINK

“When two able and conscientious judges reach such startlingly disparate results in cases with striking similarity, it is plain that our sentencing procedures need to be re-examined.”

— Judge Irving R. Kaufman in a 1960 essay in the Atlantic Monthly

Judge Kaufman’s contention 55 years ago is particularly apt today. In a Gannett Wisconsin Media I-Team report that begins today, reporter Eric Litke analyzed the judiciary and the disparity in some sentences handed down by judges and the accountability of these elected officials.

It’s an imperfect system in an imperfect world, and it’s been that way ever since judges have been elected and juries have been seated.

But, can it be improved?

Let us know what you think. Should there be sentencing guidelines so that similar crimes receive similar sentences, all factors being more or less equal? Or is the current system based on judicial discretion OK, given all the variables that go into each court case? Should circuit court judges be elected positions or appointed? Tell us what you think of the current state of the judiciary in Wisconsin by emailing us at forum@greenbaypressgazette.com or send us a tweet using the hashtag #WIjudges.

JOIN THE CONVERSATION

Chat with Gannett Wisconsin Media Investigative Team reporter Eric Litke at noon Monday. Litke will discuss his findings in the WisconsINjustice series and field your questions and comments at greenbaypressgazette.com/judges..